Magistrate Torres recently issued a Report and Recommendation in a Southern District patent case dealing with personal jurisdiction exclusively premised on the Defendant’s website. The Magistrate utilized, with reservations, the widely adopted Zippo Mfg. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa. 1997) “sliding scale” test to determine that the defendant’s website was “interactive” where it merely provided links to resellers and distributors of accused products but allowed users to create an account to download software for use with the accused products.
The Court acknowledged that the Federal Circuit has not yet addressed the Zippo rationale but that several other circuits (3rd, 4th, 5th , 6th, 8th ,and 9th ) had adopted it to some extent. The Court also acknowledged that the 11th Circuit was split on the adoption of Zippo and joined in the criticism of Zippo, cautioning against over-reliance on the level of website interactivity in deciding jurisdictional question. Ultimately, the Magistrate refused to hold the outcome of the Zippo analysis dispositive, but found through a more traditional analysis that there were insufficient contacts between the Defendant and Florida and recommended granting the motion to dismiss.
Interestingly, the court referenced a click-wrap agreement that contained exclusive venue/jurisdiction provisions in its reasoning. The Court held that although the agreement could not bind the Plaintiff, it “nevertheless shows Intelligolf’s intention not to avail itself of a jurisdiction based on the use of the accounts other than in the state of California.”
In sum, this Report and Recommendation presents an excellent exposition of the status of Zippo and generally of website jurisdiction in Florida Federal courts.
By the way, congratulations to Jeffrey Kamenetsky who represents the prevailing Defendant.